Notre Dame Journal of Law, Ethics & Public Policy
Volume 23
Issue 1 Symposium on Migration
Article 10
January 2014
Sitting on Ellis Island: The Fate of Disparate
Immigration Policies in the Wake of the
Guantanamo Bay Cases
Andrea Barton
Follow this and additional works at: http://scholarship.law.nd.edu/ndjlepp
Recommended Citation
Andrea Barton, Sitting on Ellis Island: The Fate of Disparate Immigration Policies in the Wake of the Guantanamo Bay Cases, 23 Notre
Dame J.L. Ethics & Pub. Pol'y 233 (2009).
Available at: http://scholarship.law.nd.edu/ndjlepp/vol23/iss1/10
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NOTES
SITTING ON ELLIS ISLAND: THE FATE OF DISPARATE
IMMIGRATION POLICIES IN THE WAKE OF THE
GUANTANAMO BAY CASES'
ANDREA BARTON*
INTRODUCTION
In the early morning hours of December 5, 2007, a light snow fell
just before sun break on the steps of Supreme Court plaza in Washington, D.C. and on seventy-three sleeping spectators camped out waiting
in the hope of securing one of the few public seats for oral arguments the
next day in what was assured to be an historic day in the Court. 2 The
question before the Court that day in the case of Boumediene v. Bush was
whether six Guantanamo Bay detainees, specifically those classified as
enemy combatants, have the right to use United States courts to challenge their detention by way of the constitutionally guaranteed writ of
habeas corpus. 3 However, the ramifications of this decision and others
like it would sweep beyond the shores of the naval base all the way to the
shores of southern Florida. Haitian immigrants are waiting too, sometimes in rafts off the warm shore of Miami, and sometimes even at Guantanamo, to secure one of the few coveted spots available to them if they
qualify as refugees. Cubans who reach the shore don't have to wait for
their status to be determined-once their feet are planted in the sand
they are on the path to adjustment under the Cuban Adjustment Act of
1966. 4
The spectators chose a supremely historic day; on June 12, 2008,
the Court issued a landmark opinion in the Boumediene case, holding
1. See Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 209 (1953) ("In
short, respondent sat on Ellis Island because this country shut him out and others were
unwilling to take him in.").
* J.D. Candidate, 2009, Notre Dame Law School; B.A., 2005, University of
Notre Dame. I would like to thank my family for always providing me with a safe harbor
and editor-in-chief Noah Stanzione for his incredible commitment to the journal and
helpful suggestions.
2.
3.
4.
All Things Considered (NPR radio broadcast Dec. 5, 2007).
128 S.Ct. 2229 (2008).
Pub. L. No. 89-732, 80 Stat. 1161.
233
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that "Art. I, § 9, cl. 2, of the Constitution has full effect at Guantanamo
Bay." Specifically, it held that the six Algerian former residents of Bosnia who have been held at Guantanamo Bay since 2002 do have the
constitutional privilege of habeas corpus and are not barred from seeking
the writ or invoking the Suspension Clause's protections because they
have been designated
as enemy combatants or because of their presence
6
at Guantanamo.
In the first sentences of the majority opinion, Justice Kennedy
acknowledged the weight and novelty of this decision as petitioners
presented "a question not resolved by our earlier cases relating to the
detention of aliens at Guantanamo. ''7 The magnitude of the decision
was palpable to the Justices, who noted that until that day, "the Court
has never held that noncitizens detained by [the United States] Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution. ' To reach its decision,
the Court engaged in an historical analysis of the writ in recognition that
the "Framers foresaw that the United States would expand and acquire
new territories."' ' The Justices were careful to rein in the decision to
implicate only the specific fact situation before them-they held "only
that the petitioners before [them] are entitled to seek the writ."10
Despite this qualification, this decision undoubtedly will spur similar
assertions of constitutional rights by noncitizens.
The effects of the decision are already materializing. The Justices'
ruling opened the door for over 200 habeas corpus claims."l Judge Richard J. Leon of the Federal District Court in Washington, in handling the
Boumediene remand, was the first federal judge to hold a full habeas hear12
ing on a Guantanamo case since the Supreme Court ruling in June.
On November 20, 2008, he ruled that five of the six men were being
held unlawfully at Guantanamo Bay and ordered their release. 13 The
Bush administration subsequently released three of the men to Bosnia.14
Despite the High Court's pronouncement, confusion and haziness still
reign over noncitizen rights. Judge Leon's disapproval of Boumediene was
evident as he announced his opinion, saying its effect was "to superim5.
128 S.Ct. at 2262.
6.
Id. at 2243-62.
7. Id. at 2240.
8. Id. at 2262.
9. Id. at 2253.
10. Id. at 2275.
11.
William Glaberson, Judge Opens First Habeas Corpus Hearingon Guantanamo
Detainees, N.Y. TIMES, Nov. 6, 2008, at A21.
12. Id.
13. Boumediene v. Bush, 579 F. Supp. 2d 191 (D.D.C. 2008). See also William
Glaberson, Judge Declares Five Detainees Held Illegally, N.Y. TIMES, Nov. 21, 2008, at Al.
14. William Glaberson, U.S. is Set to Release 3 Detainees From Base, N.Y. TIMES,
Dec. 16, 2008, at A28.
SITTING ON ELLIS ISLAND
2009]
pose the habeas corpus process into the world of intelligence
gathering." 15
Discussions of Boumediene and the other Guantanamo cases have
captured newspaper headlines and emblazoned television screens, invigorating an intense debate over the citizenship and territoriality of not only
the detainees but also immigrants in general. 6 Hazy categories of citizens, noncitizens, and "enemy combatants" have emerged with equally
hazy conceptions of their level of access to constitutional rights. The
Supreme Court's decision was an attempt to bring clarity to the discussion, but it is only clear that confusion and haziness still cloud the conversation. The Justice Department acknowledged the confusion and saw
Judge Leon's decision as "perhaps an understandable consequence of the
fact that neither the Supreme Court nor Congress has provided rules on
how these habeas corpus cases should proceed in this unprecedented context."' 7 The Boumediene decision addressing the due process rights of
these noncitizen detainees will likely have a significant impact on immigration law and the constitutional rights of immigrants stopped at the
border or detained in Cuba. The stringent categories of citizen and
noncitizen that immigration law used to converse in have given way to
terminology that attempts to make room for national security. This
Note will extend the discussion beyond due process rights to the viability
of an equal protection claim against disparate immigration policies, particularly in the context of Caribbean immigrants and the special Cuban
"Wet Foot/Dry Foot" policy. If an equal protection claim by the immigrants themselves is found to not be viable, the disparate immigration
laws may endure a challenge brought by family members or under international law. In light of this, the United States should proactively adopt
a more national origin-neutral policy towards refugees that is both loyal
to its national security concerns and fair in its treatment of those desperately seeking refuge.
In Part I, I will discuss the history of disparate immigration policies
in the United States. In Part II, I will contrast the immigration policies
the United States has towards Cuba and Haiti. In Part III, I will discuss
the viability of a constitutional claim challenging these policies brought
by Haitian immigrants in light of the Guantanamo Bay cases. Finally, in
15.
Glaberson, Judge Declares Five Detainees Held Illegally, supra note 13, at A21.
Nevertheless, Judge Leon sided with the Bush administration in holding that two other
detainees, a Yemeni and a Tunisian, were properly held as enemy combatants. Sliti v.
Bush, No. 05-429 (RJL), 2008 WL 5411121 (D.D.C. Dec. 30, 2008); Al Alwi v. Bush,
No. 05-2223 (RJL), 2008 WL 5412289 (D.D.C. Dec. 30, 2008). See also William
Glaberson, Judge Agrees With Bush in Ruling on 2 Detainees' Status, N.Y. TIMES, Dec. 31,
2008, at A15.
16. See, e.g., Linda Greenhouse, Guantanamo Legal Battle is Resuming, N.Y.
TIMEs, Sept. 2, 2007, at 1-14 (Wash. ed.); Adam Liptak, In Terror Cases, Administration
Sets Own Rules, N.Y. TiMEs, Nov. 27, 2005, at 1-11.
17. Glaberson, Judge Declares Five Detainees Held Illegally, supra note 13.
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Part IV, I will discuss alternative challenges to an equal protection claim
by Haitian immigrants.
I.
A.
IMMIGRATION POLICY IN THE UNITED STATES
The Intersection of National Security and Immigration Law
It is precisely the persistent ambiguities in the constitutional rights
of immigrants that make immigration law so tempting for the government to employ to combat terrorism, most recently in the context of the
detention of terrorism suspects in places like Guantanamo Bay." s Immigration law is inextricably tied to national security concerns, and the
Supreme Court has repeatedly recognized that immigration law can be a
powerful tool in foreign policy. 1 9 The tragedy of September 11, 2001
launched the War on Terror and institutionalized immigration as a
national security affair with the creation of the Department of Homeland
Security. 2° The Department of Homeland Security Reorganization Plan
was introduced on November 25, 2002, and it transferred a majority of
the immigration functions that had previously been performed by the
Immigration and Naturalization Service to this newly created national
security department.2 1
The Court's June 29, 2007 decision to hear the Boumediene case
marked its first cert reversal in sixty years and the third case dealing with
Guantanamo Bay detainee rights to come before the Court. 22 In recognition of the magnitude of this decision, it authorized the same-day
release of the audio argument. 23 Boumediene is the most recent development in a series of power-plays between the Bush administration and
advocates of detainee rights. It is an unexpected plot twist and the latest
chapter in a convoluted storyline of Supreme Court decisions that have
shaped immigration policy in the United States. President Barack
18. See Brian G. Slocum, The War on Terrorism and the ExtraterritorialApplication
of the Constitution in Immigration Law, 84 DENV. U. L. REV. 1017, 1022 (2007) (noting
that courts have struggled with "which, if any, constitutional rights should be afforded
aliens").
19. See Part I.B infra.
20. See, e.g., Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 491
(1999) ("The Executive should not have to disclose its 'real' reasons for deeming nationals
of a particular country a special threat-or indeed for simply wishing to antagonize a
particular foreign country by focusing on that country's nationals."); Mathews v. Diaz,
426 U.S. 67, 81 (1976) (calling for judiciary caution since immigration law decisions
"may implicate our relations with foreign powers").
21. DEP'T OF HOMELAND SEC., REORGANIZATION PLAN 4 (2002), http://www.
whitehouse.gov/news/releases/2002/1 1/reorganization-plan.pdf.
22. Ctr. for Const. Rts., Boumediene v. Bush/Al Odah v. United States, http://ccrjustice.org/ourcases/current-cases/al-odah-v.-united-states (last visited Jan. 14, 2009).
23. Joan Biskupic, Court to Release Detainee Case Recordings Early, USA TODAY,
Nov. 27, 2007, available at http://www.usatoday.com/news/washington/2007-11-27courtN.htm.
SITTING ON ELLIS ISLAND
20091
Obama's campaign promise to close Guantanamo has made its detainees
the latest protagonists.24 The initial decision to hold detainees off U.S.
soil at Guantanamo was made under the impression that they would not
have access to the courts.2 5 Instead of merely reacting to the erratic tilta-whirl ride of Supreme Court decisions, the United States should
develop immigration policies that are less susceptible to challenge.
B.
A History of National Origins-BasedImmigration Legislation
As a self-defined nation of immigrants, the history of immigration
policy in the United States is extensive and marked by periods of unbridled welcome tempered with periods of blatant discrimination. The
approximately four million annual tourists, fourth grade field trip stu26
dents, and history enthusiasts that visit the Statue of Liberty each year
read Emma Lazarus' plea emblazoned on the granite-faced base of the
"Mother of Exiles": "Give me your tired, your poor,/Your huddled
masses yearning to breathe free,/The wretched refuse of your teeming
shore./Send these, the homeless, tempest-tost to me,/I lift my lamp
beside the golden door!"'27 In 1986, America commemorated one hundred years of copper and steel-encapsulated liberty with a birthday celebration at which President Ronald Reagan reinvigorated Lazarus'
message, charging, "We are the keepers of the flame of liberty. We hold
it high.., for the world to see." 28 The United States is not equipped to
offer refuge to all. However, Lazarus' oft-quoted appeal has been at
times tarnished by a United States immigration policy that has picked
and chosen which "huddled masses" to accept through national origins
quota systems and legislation that rewards those groups with contemporary political clout.
In this Note, I assert that despite attempts to eradicate national origins-based policy, it has infiltrated U.S. immigration law post-19 6 5 and
continues today, typically rewarding the group with the most political
clout in Congress at the time. The United States has every reason to
limit immigration and secure its borders, but immigration is inevitable
and integral to the country's vibrancy. History and modern day policies
24. See William Glaberson & Helene Cooper, Obama's Closing of Guantanamo
May Take a Year, N.Y. TIMEs, Jan. 13, 2009, at Al (stating that Obama plans to issue an
executive order on his first day in office to close the detention camp).
25. Posting of Jan Crawford Greenburg to ABC News Legalities Blog, http://
blogs.abcnews.com/legalities/2008/07/bush-to-close-g.html (July 2, 2008, 19:06).
26. David W. Dunlap, Matters ofHow Many and How Much at the Sept. 11 Memorial,N.Y. TIMES, Sept. 22, 2005, at B8 (counting 3,618,053 visits at the Statue of Liberty in 2004).
27. Emma Lazarus, The New Colossus Ins. 9-14 (1883).
28. Ronald W. Reagan, Remarks on the Lighting of the Torch of the Statue of
Liberty (July 3, 1986), availableat http://www.reagan.utexas.edu/archives/speeches/1986/
70386e.htm.
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NOTRE DAME JOURNAL OF LAW ETHICS & PUBLIC POLICY
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reveal that the country has yet to adopt a national origins-neutral immigration policy that looks to the needs of the United States as a country
and immigrants as human beings, which may leave it susceptible to an
equal protection challenge.
Emma Lazarus' words rang almost too true in the first hundred
years of the nation's existence. Immigration was unrestricted and even
encouraged as essential to the prosperity of the newborn nation. 29 However, around the mid-1800s the composition of the immigrant flow
changed from a majority of British, Irish, and German to include an
increasing number of unskilled laborers from Southern and Eastern
Europe, China, and South America. 3" The juxtaposition of the California Gold Rush and the Taiping Rebellion in China resulted in an influx
of Chinese immigrants who satisfied the need for inexpensive labor.3 1
When the need for labor waned, so too did the tolerance for immigrants,
who were accused of driving wages down and taking away jobs. 32 AntiChinese riots erupted in western cities, and Congress responded by
enacting the Chinese Exclusion Act, the first national immigration law
that discriminated against future immigrants on the basis of their
national origin.33 The Act was passed in 1882; it suspended the immigration of Chinese laborers for ten years, allowed for the deportation of
any Chinese in the country illegally, and prohibited Chinese immigrants
from obtaining United States citizenship.3 4 The Supreme Court upheld
the federal government's power to regulate immigration in 1889 in Chae
Chan Ping v. United States ("The Chinese Exclusion Case"). 35 The
Court held that the federal power to exclude noncitizens was inherent in
the very notion of a sovereign State:
To preserve its independence, and give security against foreign
aggression and encroachment, is the highest duty of every nation,
and to attain these ends nearly all other considerations are to be
subordinated. It matters not in what form such aggression and
encroachment come, whether from the foreign nation acting in its
national character or from vast hordes of its people crowding in
36
upon us.
29.
NicAsio DIMAS ET AL., U.S. COMM'N ON CIVIL RIGHTS, THE TARNISHED
GOLDEN DOOR: CIVIL RIGHTS ISSUES IN IMMIGRATION
7 (1980).
NUMBERsUSA EDUC. & RES. FOUND., POST-1965 U.S. IMMIGRATION POLicy: A REVIVAL OF NATIONAL ORIGINS-BASED DISCRIMINATION? 3-4, http://www.
30.
numbersusa.com/PDFs/Postl965USImmigrationPolicy.pdf (last visited Jan. 14, 2009).
31.
STEPHEN H.
LEGOMSKY, IMMIGRATION AND REFUGEE LAW AND POLICY 14
(3d ed. 2002).
32. DIMAS, supra note 29, at 8.
33. NUMBERsUSA, supra note 30, at 4.
34. Id. at 5.
35. 130 U.S. 581 (1889).
36. Id. at 606.
SITTING ON ELLIS ISLAND
2009]
As is frequently the case with immigration laws, the decision was
mostly motivated by the political pressures of the time.
Four years after the Chinese Exclusion Case, the Supreme Court
expanded the right to exclude entry into an absolute power to demand an
individual's departure when it held that the right to deport foreigners was
"an inherent and inalienable right of every sovereign and independent
nation, essential to its safety, its independence and its welfare." 37 This
right was readily exercised in post-war times. Mobilization for the war
efforts created both a desperate labor shortage and a short-lived tolerance
for immigrants occupying jobs once the need was fulfilled.
Mexican immigrants, for instance, came to the United States in significant numbers for the first time around 1909.38 Political and economic upheaval impelled a further wave of immigrants who were well
received as a solution to the labor shortage caused by the First World
War. 39 But federal immigration officials responded to the economic
tumult of the Depression by expelling 500,000 persons of Mexican
descent, and over half of them were United States citizens. 40 The same
shift occurred following World War II, when over 1,000,000 persons of
Mexican descent were expelled from this country during another expulsion, termed "Operation Wetback."'" Many of those42expelled were, once
again, American citizens born in the United States.
8.8 million immigrants entered the United States during the first
decade of the twentieth century alone.43 Restrictive immigration policies
enacted between 1917 and 1924 reflected a swelling tide of unease
towards the millions of new arrivals. 44 At the end of World War I, ruminating fear of an inundation of immigrants from war-torn countries led
to passage of the Quota Law of 1921, which for the first time set numerical limitations on immigration.4 5 Intended to be temporary, it capped
immigration of each nationality at three percent of the United States
residents of that nationality living in the country in 1910.46 With the
first numerical restriction also came the first of many unequal numerical
were exempt
applications. Natives of Western Hemisphere countries
47
from the quota and could enter free of restriction.
37.
Fong Yue Ting v. United States, 149 U.S. 698, 711 (1893).
38.
DIMAs, supra note 29, at 10.
39.
40.
41.
42.
Id
Id.
Id.at 11.
Dim-AS, supra note 29, at 11.
43. U.S.
STATES
44.
45.
46.
47.
BuREAu OF THE CENSUS, HISTORICAL STATISTICS OF THE UNITED
99 (1975).
LEGOMSKY, supra note 31, at 125-26.
Id.at 126.
Dim.As, supra note 29, at 9.
LEGOMSKY, supra note 31, at 126.
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Congress implemented a more permanent national origins quota
system when it enacted the 1924 National Origins Act, which set a ceiling of 150,000 immigrants per year and adopted a quota for each nationality group of two percent of the members of that group in the United
States in 1890.4' Again, immigrants from the Western Hemisphere were
exempted as "non-quota immigrants" free from restrictions, whereas
immigrants from Eastern Hemisphere countries were subject to numerical restrictions if admitted at all. 4 9 The 1924 legislation also contained a
provision prohibiting the immigration of aliens ineligible for citizenship. 5° The ratification of the Fourteenth Amendment extended eligibility for naturalization to African-Americans, but Asians remained
ineligible under naturalization laws since they were considered "nonwhite."5 1
Congress codified the immigration laws under a single statute when
it passed the Immigration and Nationality Act (INA) in 1952.52 Congress made its intent to eradicate national origins discrimination explicit
in the Act's language. 53 The introduction to section 202(a) of the INA
unequivocally declares: "[N]o person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa
because of the person's race, sex, nationality, place of birth, or place of
residence." 54 The language of the statute should preclude the use of discriminatory immigration policies. Although it eliminated race as a bar to
naturalization and immigration, it retained the national origins quota
systems as a means to "best preserve the sociological and cultural balance" in the United States.55
In 1965 in the wake of the Civil Rights Act, Congress amended the
INA and abolished the national origins quota system, replacing it with a
seven-category preference system that favored immigrants with relatives
56
in the United States, immigrants with needed labor skills, and refugees.
In 1976, the categorical preference system, which had previously only
48. DimAs, supra note 29, at 9-10.
49. NUMBEgsUSA, supra note 30, at 8. The 1924 law used the 1890 census to
determine percentages instead of the 1910 census, which the temporary quota law of
1921 used. Immigrants from Northern and Western Europe directly benefited from this
decision since their predecessors represented a greater segment of the pre-Great Wave
U.S. population. Id. at 9.
50.
Id
51. Id. at 10. See, e.g.,
Ozawa v. United States, 260 U.S. 178 (1922) (holding that
a Japanese immigrant could not be naturalized because he was non-white).
52. NUMBERSUSA, supra note 30, at 11.
53. Id. at 13.
54. Immigration and Nationality Act § 202(a)(1)(A), 8 U.S.C. § 1152 (amended
in 1990 by Pub. L. No. 101-649, 104 Stat. 4978).
55. S. REP. No. 81-1515, at 455 (1950).
56. NUMBEsUSA, supra note 30, at 13. Numerical restrictions on immigration
remained a central feature of the amendments, which capped total immigration from the
Eastern Hemisphere at 170,000 annually, with a per-country limit of 20,000, and capped
SITTING ON ELLIS ISLAND
2009]
applied to Eastern Hemisphere immigrants, was extended to applicants
from the Western Hemisphere. 5 7 Two years later, the numerical restrictions for immigrants from both hemispheres were combined into a single
worldwide cap of 290,000 per year.5 8 The cap was increased to 675,000
by the Immigration Act of 1990, which simultaneously added a category
of admission based on diversity.5 9
Since 1965, the United States has experimented with legislation to
deal with illegal immigration, sometimes more successfully than others.
The United States has a history of participating in resettlement efforts of
refugees since the end of World War II, and the Refugee Act of 1980
enacted a comprehensive refugee policy that gave the President and Congress collaborative power to determine the number of refugees admitted
on a yearly basis.6 Haitian immigrants hope to fall within the ambit of
this act. The Immigration Reform and Control Act of 1986 addressed
the burgeoning issue of illegal immigration by imposing sanctions on
employers who knowingly employed unauthorized immigrants and created two amnesty programs for those in the United States illegally. 6'
Unauthorized immigration received further attention in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which
addressed border enforcement and the use of social services by
immigrants.6 2
II.
IMMIGRATION FROM THE CARIBBEAN
Although national origins quotas were supposedly eradicated in
1965, national origins based legislation still seems to characterize immigration policy. The imagery of a crowded, dilapidated boat arriving on a
United States sandy beach has become synonymous with illegal immigration. In the early 1990s, the United States quickly became the desired
destination of three primary groups of undocumented immigrants traveling by boat: Haitians, Cubans, and Chinese. 63 And although all arrive
here equally thirsty, both for water and American citizenship, and equally
desirous of the opportunity to live in America, the national origin of that
boat and its occupants has a direct impact on whether or not their thirsts
total immigration from the Western Hemisphere for the first time at 120,000. DIMAs,
supra note 29, at 11.
57. CONG. BUDGET OFFICE, IMMIGRATION POLICY IN THE UNITED STATES 1
(2006), available at http:/lwww.cbo.gov/ftpdocsl70xxldoc7O51/02-28-Immigration.pdf.
58.
59.
Id.
60.
61.
Id. at 2.
Id.
Id.
62. Id.
63. Jan C. Ting, Other Than a Chinaman: How US. Immigration Law Resulted
From and Still Reflects a Policy of Excluding and Restricting Asian Immigration, 4 TEMP.
POL. & Civ. RTS. L. REv. 301, 311 (1995).
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will be quenched, which reflects an immigration policy that is still rooted
in national origins. Illegal immigration should never be encouraged, and
the United States cannot take in the world. However, it does make room
in its immigration policy for refugees, but it does not adopt a consistent
response to these efforts by sea.
A.
Cuban Immigration
On December 28, 1892, the U.S. Senate Committee on Immigration held a hearing on the topic of migration from Cuba to the United
States. The very first witness, U.S. Consul-General Ramon 0. Williams,
described the state of emigration from Cuba to the United States:
I should say that there is no emigration from the island of Cuba,
in the European sense of the word ...between Key West and
Havana people go as between Albany and New York; or as
between New York and Boston on the Sound... [Cubans] say, "I
want to go to the Key" just as in Baltimore they would say, "I am
64
going over to Washington."
Until August 1994, Cubans who wished to enter the United States
were free to do so with no real restriction. 65 Congress passed the Cuban
Adjustment Act in 1966 in response to the deluge of Cubans to the
United States after the fall of the Batista government in 1959 and the
assumption of power by Fidel Castro.6 6 The law was enacted to show
United States opposition to Castro's oppressive communist regime and
gave Cubans specialized treatment in the naturalization process. Cuban
nationals who had been admitted to the United States or who had come
illegally could apply for an immigrant visa after one year of residency in
the country. 67 Further, these Cubans would be given permanent residence retroactively to the date of their arrival, so even time spent here
illegally would count towards the five years of residency necessary for
naturalization.6 8 Cuba was the tenth largest source of immigrants to this
country from 1981 to 1989, and over 192,000 Cubans were granted
permanent resident status in the United States between 1981 and
1994.69 In 1994, Fidel Castro lifted restrictions on emigration, crowding
70
a sea of Cuban immigrants on rafts setting out for American shores.
64.
Lisandro P&ez, The End of Exile?: A New Era in U.S. Immigration Policy
Toward Cuba, in
FREE MARKETS, OPEN SOCIETIES, CLOSED BORDERS?: TRENDS IN
INTERNATIONAL MIGRATION AND IMMIGRATION POLICY IN THE AMERICAS 197, 197
(Max J. Castro ed., 1999).
65.
Id.
66.
NUMBERSUSA, supra note 30, at 15.
67.
68.
69.
70.
Id.
Id.
Id.at 16.
Id.
2009]
SITTING ON ELLIS ISLAND
On August 19, 1994, President Clinton modified the long-standing
open door policy and outlined a new detention policy-immigrants
arriving illegally from Cuba would not be allowed to enter the country
and would instead be detained at the Guantanamo Naval Base. 71 Clinton emphasized that the policy stemmed from dual considerations of the
safety of the rafters and the need to prevent another exodus like the
Mariel Boatlift, 72 but was most likely a response to the growing dissidence in the U.S. electorate to preferential treatment for Cubans, especially when they appeared to be migrating for the same reasons as every
other immigrant-to escape poverty and improve their lives. 73 Since this
new policy did mark a significant reversal, Clinton was asked at the press
conference whether people fleeing Cuba would still receive automatic
entry into the United States as political refugees, and he responded:
No, ... the people leaving Cuba will not be permitted to come to
the United States; they will be sent to safe havens. The people
who reach here will be apprehended and will be treated like
others. . . . Their cases will be reviewed, those who qualify can
stay, and those who don't will not be74permitted to. They will now
be treated like others who come here.
Despite the new policy, the exodus continued, and the Coast Guard
was rescuing record numbers of rafters each day.75 In response, the
United States reopened talks with Cuba on immigration issues on September 1, 1994.76 Eight days later, in exchange for exit controls on
Cubans leaving the island, the United States for the first time placed a
floor on immigration from any country when it guaranteed Cuba a mini71. Lisandro P&ez, supra note 64, at 204.
72. In an attempt to burden the United States, Fidel Castro opened the Cuban
port of El Mariel and allowed over 125,000 Cuban nationals, including prisoners, to
flood the shores of the United States. The Carter administration responded to the deluge
with its "open hearts and open arms" policy and allowed immigrants to seek asylum from
political persecution in the United States. Alberto J. Perez, Note, Wet Foot, Dry Foot, No
Foot: The Recurring Controversy Between Cubans, Haitians, and the United States Immigration Policy, 28 NOVA L. REv. 437, 445 (2004).
73. Lisandro P&ez, supra note 64, at 204.
74. Id. at 203-04 (emphasis added).
75. Id. at 205.
76. Id at 205-06. The New York Times ran a story discussing Castro's ability to
manipulate U.S. foreign policy:
His country may be crumbling around him, its economy reduced to ruins and
its people so disgusted with their situation that some have marched in the
streets of Havana this month, openly demanding his ouster. But for all his
problems at home, Fidel Castro still retains a remarkable ability to bedevil the
United States and to transfer the burden of his own domestic failings to the
adversary he has fought with such gusto and relish for more than 35 years.
Larry Rohter, Best of Enemies; Castro, The Man With Few Cards, Always Winds up the
Dealer, N.Y. TIMEs, Aug. 28, 1994, at 4-1.
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mum of 20,000 visas available to Cubans each year.77 In 1995, the Wet
Foot/Dry Foot policy was implemented, which orders the repatriation of
Cuban emigrants traveling by boat to the United States who are intercepted at sea but, more importantly, makes those lucky enough to make
78
it to the shore eligible for citizenship under the Cuban Adjustment Act.
Cuban rafters intercepted by the U.S. Coast Guard would be returned to
Cuba.79 No such policy exists for other Caribbean refugees.
B.
1.
HaitianImmigration
History
Although not in the grip of communism, in the two centuries since
independence, Haiti has withstood an unremitting chain of dictatorships,
military coups, and political assassinations that have plagued any attempt
to institute a democratic government.8" In the 1960s, Haiti suffered
under the repressive rule of Franois Duvalier, or "Papa Doc," who
engaged in continuous human rights violations.8 ' His rule was followed
by his son Jean-Claude Duvalier, or "Baby Doc," whose reign mimicked
his father's in its oppression and subjugation of basic human rights.8 "
Because of the magnitude of his violations, the U.S. joined several other
countries in demanding his departure. His tumultuous reign was followed by further instability as Haiti cycled through five different presidents in four years. In October 1991, a violent military coup ousted
Haiti's first democratically elected president, Jean-Bertrand Aristide,
leading to massive repression by security forces, "disappearances," extrajudicial executions, torture, threats, and intimidation of those who had
supported the President, and compelling 42,000 to brave the sea in hopes
3
of reaching the United States.1
The political instability created by this quick succession of leaders
has accelerated the deterioration of civil liberties in Haiti.8 4 Although
the 1987 Constitution protects the right to assemble and unionize, citizens are repeatedly arrested and beaten for public gatherings and workers
are detained or killed for attempts to engage in collective bargaining.85
77.
78.
79.
80.
81.
82.
83.
93 (Apr.
Lisandro Perez, supra note 64, at 206.
Alberto J. Perez, supra note 72, at 455.
Lisandro Prez, supra note 64, at 207.
Alberto J. Perez, supra note 72, at 456.
Id. at 446.
Id.
Amnesty Int'l, United States: Failureto ProtectHaitian Refugees 1, AMR 51/31/
1993).
84. WILLIAM G. O'NEILL & ELLIOTr SCHRAGE, L-AWYERS COMMITTEE FOR
HUMAN RIGHTS, PAPER LAWS, STEEL BAYONETS: THE BREAKDOWN OF THE RULE OF
LAW IN HAITI 10 (1990).
85. Id. at 11. For example, on October 19, 1989, the section chief of Mapou
prohibited residents from holding public meetings, including religious ceremonies. His
SITTING ON ELLIS ISLAND
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American notions of due process are a fairy tale. Once incarcerated,
almost none of the prisoners in Haitian jails will ever see a lawyer. Haiti
remains the poorest country in the Western hemisphere with an everdeclining standard of living. 86 Approximately 80% of the population
lives in poverty and, of the few employed, two-thirds of the labor force
work in non-formal jobs.17 When Haiti fell from 146th to 150th place
on the United Nations Development Programme ranking in 2003, with a
drop in life expectancy to an abysmal 49.1 years, representatives of several
international aid organizations issued a statement of concern:
We are greatly alarmed by the accelerated degradation of the socioeconomic conditions, by the lost economic opportunities at the
national, regional and global level, and by the systematic deterioration of the environment .... The nutritional situation is in the
process of collapsing towards critical levels: 23% of children under
the age of five suffer from chronic malnutrition, and the reports of
local organisations mention a 30% increase in the cases of severe
malnutrition.8 8
Although Haitian life expectancy has appreciably improved since
then, to an estimated 58.1 years,89 it still falls well below Cuba's 77.2.9"
But the tumult and poverty that has characterized the last two hundred
years in Haiti still pushes their people into the sea, alongside Cubans,
towards American shores.
2.
Haitian Immigration Policies
On July 7, 1991, a Haitian fishing boat named Conail was intercepted by Coast Guard officials on border patrol thirty miles off the coast
of Miami. 9 Of the 163 men, women, and children on board, 161 were
Haitians fleeing impoverishment in their homeland, and the other two
were Cubans who had been saved by the Haitians from their flimsy raft
in a "gesture of brotherhood."9 2 However, the "brothers" were soon separated, as the two Cubans were allowed to stay in the United States and
assistant burned down the homes of three peasant families to demonstrate his authority
over the community. Id. at 76.
86. Central Intelligence Agency, The World Factbook: Haiti, https:l/www.cia.govl
librarylpublicationslthe-world-factbooklgeoslha.html (rev. Feb. 19, 2009).
87. Id
88. Amnesty Int'l, Haiti: Abuse of Human Rights: Political Violence as the 200th
Anniversary of Independence Approaches 4, AMR 36/07/03 (Oct. 2003).
89. UNITED NATIONS DEV. PROGRAMME, HUMAN DEVELOPMENT REPORT
2007/2008, at 263 tbl.
10, available at http://hdr.undp.org/enlmedia/HDR_20072008ENIndicatorjtables.pdf.
90. Id.at 261 tbl.10.
91. Anthony DePalma, For Haitians, Voyage to a Land of Inequality, N.Y.
July 16, 1991, at Al.
92.
Id.
TIMES,
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all but nine of the Haitians were sent back.93 Haitians living in the
United States were infuriated by the seemingly stark double standard in
immigration policy. 94
The primary features of the modern day immigration policy
towards Haitians include "interdiction on the high seas and mandatory
detentions of undocumented, interdicted Haitians." '
Congressional
debate over the years has focused on the seemingly disparate classification
of Haitians as economic migrants, which results in different treatment
from other immigrants seeking asylum. 96 Even though many Haitians
claimed to be fleeing political repression and many Cubans admitted to
be escaping harsh economic conditions, the U.S. government has defined
Cubans as political refugees to be granted legal status and classified Haitian immigrants as economic migrants detained indefinitely or processed
for deportation. 97 The dissimilar treatment of Haitian immigrants
became obvious during the massive migration of Cubans in 1980 during
the Mariel boatlifr. 9 8
The interdiction program first started on September 23, 1981,
when the United States and Haiti authorized the Coast Guard to intercept vessels with undocumented immigrants. 99 As part of the agreement,
the Haitian government said it would not punish those who were repatriated, and those who qualified as refugees would not be returned to
Haiti. 1 ° ° In the decade that followed, the Coast Guard intercepted
25,000 Haitian immigrants.101 Interviews were conducted aboard Coast
Guard cutters, and immigrants identified as economic migrants were
screened out and repatriated while those who made a credible showing of
refugee status were screened in and
transferred to the United States to file
10 2
formal applications for asylum.
The military coup that ousted the first democratically elected president in September 1991 resulted in "hundreds of Haitians [being] killed,
tortured, detained without a warrant, or subjected to violence and the
destruction of their property because of their political beliefs," 10 3 and
93.
Id
94. Id.
95. Maureen Taft-Morales & Clare M. Ribando, Haiti: Developments and U.S.
Policy Since 1991 and Current Congressional Concerns, CRS Report for Congress 31
(2007), available at http://fas.org/sgp/crs/row/RL32294.pdf.
96. Id.
97. Ram6n Grosfoguel, Migration and Geopolitics in the Caribbean: The Cases of
Puerto Rico, Cuba, the Dominican Republic, Haiti, and Jamaica,in FREE MARKETS, supra
note 64, at 225, 235.
98. Id. at 234.
99. Alberto J. Perez, supra note 72, at 451.
100. Id.
101. Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 161 (1993).
102. Id. at 161-62.
103. Id. at 162.
SITTING ON ELLIS ISLAND
20091
spurred 34,000 Haitians into the sea towards the United States. Because
of the massive numbers, the Department of Defense established temporary facilities at the United States Naval Base in Guantanamo, Cuba to
conduct screening for refugee status.'0 4 The naval base soon was filled to
capacity, and President Bush had to choose between allowing Haitians
into the United States for the screening process or repatriating them
without an opportunity to qualify as refugees.' 0 5
On May 23, 1992, Bush chose the second option, and issued Executive Order No. 12,807.106 Bush believed it was the best way to assist in
the restoration of democracy in Haiti while discouraging Haitians from
risking their lives on the treacherous voyage to freedom.' 1 7 In Sale v.
Haitian Centers Council, several organizations and Haitian aliens
mounted a legal challenge to the interdiction program.'0 8 Haitian immigrants who were either residing illegally in the United States or who
arrived on shore were subject to deportation or exclusion hearings at
which they could request asylum; however these avenues were only available to those who reach the border and thus "the interdiction program
challenged here has prevented Haitians such as respondents from reaching our shores and invoking those protections."' 0 9 The respondents
asserted that the forced repatriation violated § 243(h)(1) of the INA, but
the Court disagreed." 0 The Court did not decide the constitutionality
of the policy, as it was not asserted as a claim.
Some members of Congress began to take umbrage at the pattern of
blatant exclusion of Haitians, which once again emerged when Congress
enacted the Nicaraguan Adjustment and Central American Relief Act
(NACARA) in 1997.' 1 The result of the NACARA was a highly preferential law which grants practically absolute amnesty to Cubans and
Nicaraguans, but offers less protection to Guatemalans and El Salvadorians and only marginal protection to Eastern Europeans. 1 2 All nationali104.
105.
Id. at 163.
Id. at 163-65.
106.
107.
108.
109.
110.
57 Fed. Reg. 23,133 (May 24, 1992).
Alberto J. Perez, supra note 72, at 453.
Sale, 509 U.S. at 166.
Id. at 160.
Id.at 170-71.
111.
Ruth Ellen Wasem, US. Immigration Policy on Haitian Migrants, CRS
Report for Congress 4 (2005), available at http://fpc.state.gov/ documents/organization/
47153.pdf.
112. NUMBERsUSA, supra note 30, at 45. The special legislation surrounding
Cuban immigration is perhaps the most famous national origins-based immigration policy, but many statutes that appear facially neutral are often discriminatory in their effect.
Hon. Paul Brickner & Meghan Hanson, The American Dreamers: Racial Prejudices and
Discriminationas Seen Through the History ofAmerican Immigration Law, 26 T. JEFFERSON L. REv. 203, 229-31 (2004). NACARA highlights the problems implicit with
nationality specific and national-origins based immigration legislation. There are countless poverty-stricken and war-torn countries teeming with people trying to gain access to
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ties not mentioned in the Act, including Haitians, were left
unprotected.1 13 After NACARA's passage, some members of Congress
argued that the exclusion of Haitians from the bill could only stem from
racial prejudice, as Haitians are similarly situated to groups which
received protection under NACARA.' 14 In response, bills were introduced in both the House and Senate to add Haitians to the Nicaraguan/
Cuban amnesty provisions of NACARA, but they were met with resistance.115 When Immigration Subcommittees evidenced their reluctance
to move the bills, the Senate version had to be proposed as an amendment to an omnibus appropriations bill." 6 The Haitian Refugee Immigration Fairness Act (HRIFA) adds Haitians who were living in the
United States and had applied for asylum or who were paroled into the
United States by December 31, 1995, and their spouses and children, to
117
the Nicaraguan/Cuban amnesty provisions.
Despite this gain, significant disparities remain. While the finish
line is drawn on the sand for Cubans, when over two hundred Haitian
immigrants successfully reached the Miami shoreline on October 29,
2002, they kept running. They desperately darted through rush hour
traffic on the Rickenbacker Causeway to evade authorities, creating a
danger for both drivers and themselves.' 18 President George W. Bush
responded to this incident and swelling tension by reiterating the policy
that "all illegal immigrants who arrive by sea, except those who fall under
the 1966 Cuban Adjustment Act, would be detained."'1 19 After hearing
Bush's announcement, Harold Vieux, President of the Conference of
Haitian Pastors United in Christ expressed a common complaint: "If
they have one exception then it doesn't apply to everyone .. .I'm not
saying that the policy should be lenient, but I'm saying that it should be
20
fair."'
the United States, and protection is granted on the basis of which group of special interests is the loudest on the floor of Congress. Just as the Haitian Refugee Immigration
Fairness Act (HRIFA) was being enacted, special interests representing Salvadoran and
Guatemalan immigrants claimed they had received a second-rate form of protection
under NACARA and representatives of Honduran illegal immigrants similarly demanded
"equal" treatment. During the following session of Congress, bills were introduced to
provide similar protection for Hondurans, Liberians, Colombians and Peruvians, Bangladeshis, and Lebonese. NUMBERSUSA, supra note 30, at 46-47.
113. NUMBERsUSA, supra note 30, at 45.
114. Id.
115. H.R. 3033, 105th Cong., 2d Sess. (1998); S. 1504, 105th Cong., 2d Sess.
(1998).
116. H.R. 4328, 105th Cong., 2d Sess. (1998).
117. Pub. L. No. 105-277, 112 Stat. 2681 (1998).
118. Alberto J. Perez, supra note 72, at 455-56.
119. Georgia East & Thomas Monnay, Haitian Activists Plan NationalProtest, S.
FLA. SUN-SENTINEL, Nov. 10, 2002, at 2B.
120. Alberto J. Perez, supra note 72, at 456.
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As in the Guantanamo Bay cases, national security concerns directly
contoured Haitian immigration policy on November 13, 2002, when the
INS published a notice explicating that certain immigrants arriving by
sea who are not to be admitted or paroled should be placed in expedited
removal proceedings and detained. 121 For example, in April 2003, thenAttorney General John Ashcroft issued a ruling that allowed for the
indefinite detention of illegal Haitian immigrants in response to burgeoning national security concerns. 1 22 Haitians who are detained under
this policy, in addition to those actually stopped on the shores of the
United States, may be able to proffer an argument that by virtue of their
detention they meet the territoriality prong of a constitutional claim.
Undoubtedly the United States has a real interest in making an
example out of Cuba and eradicating the disease of communism. But
Cuba is not the only communist country in the world; yet its emigrants
are the only ones who receive this disparate treatment. 123 Although
Haiti is not a communist country, its government has been plagued by
political unrest that has left its citizens poverty-stricken.
III.
IMMIGRANTS AND THE CONSTITUTION
To begin his argument, the counsel for the city in Mayor of New
York v. Miln responded to the foreign shipmaster with irritation that,
"although a stranger among us, he has undertaken to teach us constitutional law." 24 He expressed a common resistance to the idea that an
immigrant would be able to make a claim under the Constitution of the
United States. However, unlike the French, who explicitly produced a
Declaration of the Rights of Man and of the Citizen, 12 5 the drafters of
the Bill of Rights did not distinguish between the respective rights of
citizens and other persons. In failing to do so they catalyzed years of
litigation and questions that are still unresolved today as to whether
immigrants may seek any refuge under the Constitution.1 26 The majority of attempted constitutional claims brought by immigrants implicate
the due process, or lack thereof, in immigration practices in entry or
deportation procedures. The series of Guantanamo Bay cases are due
process claims in which the detainees assert that they are deprived of the
opportunity to present evidence or appeal the decision.
121.
122.
Wasem, supra note 111, at 4.
Taft-Morales & Ribando, supra note 95, at 31.
123.
NumbersUSA, supra note 30, at 17.
124.
125.
36 U.S. (11 Pet.) 102, 121 (1837).
126.
DtCLkRATON DES DROITS DE L'HoMME ET DU CITOYEN (1789).
GERALD L. NEUMAN, STRANGERS TO THE CONSTITUTION: IMMIGRANTS,
BORDERS, AND FUNDAMENTAL LAw 53 (1996).
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A.
[Vol. 23
ConstitutionalRights of Immigrants
Since the Court decided the Boumediene case in a way that may
afford detainees some due process rights, equal protection rights are next
in line to be challenged, as the two clauses both refer to "any person" as
their subjects.
The Fourteenth Amendment reads:
All persons born or naturalized in the United States, and subject
to the jurisdiction thereof, are citizens of the United States and of
the State wherein they reside. No State shall make or enforce any
law which shall abridge the privileges or immunities of citizens of
the United States; nor shall any State deprive any person of life,
liberty, or property, without due process of law; nor deny to any
12 7
person within its jurisdiction the equal protection of the laws.
By its terms, the clause restrains only state governments. However,
the Fifth Amendment's due process guarantee has been read as imposing
the same restrictions on the federal government. 2 8 The ratification of
the Fourteenth Amendment in 1868 brought with it a new suggestion
that all persons, citizens or not, would enjoy the protections of the Due
Process and Equal Protection clauses. 129 Shortly after the enactment of
the Fourteenth Amendment, the Court confirmed this suggestion when
it decided a case that became the foundation of the alien rights tradition.
In Yick Wo v. Hopkins, it held that the Fourteenth
is not confined to the protection of citizens .... These provisions
are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color,
or of nationality; and the equal protection of the laws is a pledge
1 30
of the protection of equal laws.
The Equal Protection clause directs that "all persons similarly circumstanced shall be treated alike." 13 1 In 1982, the Court identified the
purpose of the clause as to "work nothing less than the abolition of all
caste-based and invidious class-based legislation.' 132 To that end, the
Court held that illegal immigrant children were "persons within the jurisdiction" of the state of Texas, 133 and thus protected under the Equal
127. U.S. CONST. amend. XIV, § 1 (emphasis added).
128. See Boiling v. Sharpe, 347 U.S. 497, 500 (1954) ("In view of our decision
that the Constitution prohibits the states from maintaining racially segregated public
schools, it would be unthinkable that the same Constitution would impose a lesser duty
on the Federal Government.").
129. Linda Kelly, Preservingthe FundamentalRight to Family Unity: Championing
Notions of Social Contractand Community Ties in the Battle ofPlenary Power Versus Aliens'
Rights, 41 VILL. L. REv. 725, 738 (1996).
130. 118 U.S. 356, 369 (1886).
131. F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920).
132. Plyler v. Doe, 457 U.S. 202, 213 (1982).
133. Id. at 210.
SITTING ON ELLIS ISLAND
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Protection clause from a Texas statute which withheld from local school
districts any state funds for the education of children who were not
"legally admitted" into the United States.134 In Cuban American Bar
Association, Inc. v. Christopher,the Eleventh Circuit held that "aliens who
are outside the United States cannot claim rights to enter or be paroled
135
into the United States based on the Constitution."
The Supreme Court has repeatedly recognized aliens within the
United States-at least those documented-as members of a suspect
class, and equal protection guarantees apply to aliens as well as naturalized citizens.1 36 In Graham v. Richardson, the Court evaluated an equal
protection claim against state welfare laws that imposed citizenship and
durational residency requirements on beneficiaries.' 3 7 In holding that
the laws were violative of equal protection, the Court classified aliens as a
prime example of a "discrete and insular minority"'13 ' and further
required that classifications based on alienage, like those based on nation139
ality or race, be subject to close scrutiny as they are inherently suspect.
However, a litany of court decisions affirms that Congress must only
have a rational basis in its formulation and adoption of regulations pertaining to aliens, even those that discriminate among classes of aliens.' 4 '
In Mathews v. Diaz, the Court decided the constitutionality of Congress
enacting legislation that discriminates in favor of citizens over aliens and
held that Congress has the power in the realm of naturalization and
immigration to make "rules that would be unacceptable if applied to
citizens."141 Despite these ephemeral pronouncements of the courts, the
constitutional rights of immigrants in the more complicated fact patterns
of real life is still an open question.
B.
Can These HaitiansBring a Claim?
Considerations of both status and territoriality have historically
been crucial in immigration law in determining the scope of constitutional rights. This is true particularly since individuals are by definition
in a limbo-like transit. In the 2004 movie The Terminal, Tom Hanks'
character Viktor is a traveler from the fictional country of Krakozhia who
finds himself stranded and forced to live in the terminal of JFK Airport
when he is denied entry to the United States but simultaneously cannot
134. Id. at 205.
135. 43 F.3d 1412, 1428-29 (11th Cir. 1995).
136. Gilbert Paul Carrasco, CongressionalArrogation of Power: Alien Constellation
in the Galaxy of Equal Protection, 74 B.U. L. REV. 591, 607 & n.71 (1994).
137. 403 U.S. 365 (1971).
138. Id. at 372 (quoting United States v. Carolene Products Co., 304 U.S. 144,
153 n.4 (1937)).
139. 403 U.S. at 372.
140. Alberto J. Perez, supra note 72, at 461.
141. 426 U.S. 67, 80 (1976).
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return to his homeland because of a political revolution. He befriends a
flight attendant, Amelia, played by Catherine Zeta-Jones, who asks him,
"Are you coming or going?" Viktor responds, "I don't know. Both."14' 2
The degree to which geography plays a role in constitutional rights
is a vibrant source of debate, as evidenced by the Boumediene case. The
United States seized Guantanamo Bay during the Spanish American War
in 1898.143 After Spain's defeat, Cuba gave the United States control of
the base, and it was later leased in perpetuity to the United States, an
arrangement that can only be broken if both countries agree. " During
Boumediene's oral arguments on December 5, 2007, Scalia's questions
evinced concerns of territoriality that enter into any discussion of immigrants' constitutional rights: "Do you have a single case in the 220 years
of our country, or, for that matter, in the five centuries of the English
empire in which habeas was granted to an alien in a territory that was not
under the sovereign control of either the United States or England[?]"' 4 5
Two categories of Haitian plaintiffs may satisfy the territoriality
prong: those who reach the shore and are turned away and those who are
detained under the Attorney General's declaration. Under the standard
146
account, constitutional rights are rooted in a territorial distinction.
The phrase "within its jurisdiction" within the Equal Protection clause
reflects this focus. This might be problematic for potential immigrant
plaintiffs, as the persons they claim the law is disparately affecting are
those who have not yet entered the country. In Leng May Ma v. Barber,
the Court emphasized the territoriality distinction: "It is important to
note at the outset that our immigration laws have long made a distinction between those aliens who have come to our shores seeking admission, such as petitioner, and those who are within the United States after
an entry, irrespective of its legality." 147 A more infamous application of
the territorial distinction and entry fiction came in the Shaughnessy case.
After a series of events that mimics the modern day cinematic drama The
Terminal, Ignatz Mezei "sat on Ellis Island because this country shut him
'
out and others were unwilling to take him in."148
[R]espondent seemingly was born in Gibraltar of Hungarian or
Rumanian parents and lived in the United States from 1923 to
1948. In May of that year he sailed for Europe, apparently to visit
his dying mother in Rumania. Denied entry there, he remained
142. THE TERMINAL (Dreamworks SKG etc. 2004).
143. Steve Vogel, Afghan PrisonersGoing to Gray Area, WASH. POST, Jan. 9, 2002,
at A01.
144. Id.
145. Transcript of Oral Argument at 10, Boumediene v. Bush, 128 S.Ct. 2229
(2008) (Nos. 06-1195, 06-1196), 2007 WL 4252686.
146. Slocum, supra note 18, at 1022.
147. 357 U.S. 185, 187 (1958).
148. Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 209 (1953).
SITTING ON ELLIS ISLAND
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in Hungary for some nineteen months ....Upon arrival [in the
United States] on February 9, 1950, he was temporarily excluded
from the United States . . . .Twice he shipped out to return
whence he came; France and Great Britain refused him permission
to land .... Respondent personally applied for entry to about a
dozen Latin-American countries but all turned him down. So in
June 1951 respondent advised the Immigration and Naturalization Service that he would exert no further efforts to depart.14 9
Despite the indefinite nature of his detention on U.S. soil and
exclusion without a hearing, the Court held that Mezei had no rights
because he was to be treated as if he were "stopped at the border."' 50
The Guantanamo Bay cases have also created new categories of status and muddled previously clear-cut notions of citizens and noncitizens
in favor of national security concerns. Immediately following the terrorist attacks of September 11, 2001, Congress enacted a joint resolution
authorizing the President to "use all necessary and appropriate force
against those nations, organizations, or persons he determines planned,
authorized, committed, or aided [those attacks] .. .in order to prevent
any future acts of international terrorism against the United States by
such nations, organizations or persons."' 5 ' Following this order, the
United States and allied forces captured hundreds of "unlawful enemy
combatants" and transferred them to Guantanamo Bay for detention,
triggering a deluge of litigation and the evolution of the "enemy combat152
ant," this third category of individuals.
In Hamdi v. Rumsfeld, the Court held that "a citizen-detainee seeking to challenge his classification as an enemy combatant must receive
notice of the factual basis for his classification, and a fair opportunity to
rebut the Government's factual assertions before a neutral decisionmaker."1 53 Justice O'Connor in her plurality opinion took issue
with Scalia's over-attention to territoriality concerns: "Justice Scalia presumably would come to a different result if Hamdi had been kept in
Afghanistan or even Guantanamo Bay. This creates a perverse incen149.
Id.at 208-09.
150. Id.at 215. In Gisbert v. US. Att'y Gen., the Fifth Circuit held that Cuban
detainees following the Mariel boatlift had no constitutional right to be free from indefinite detention. 988 F.2d 1437 (1993). The Supreme Court's decision in Landon v.
Plasencia to afford due process in an exclusion hearing of a permanent resident alien
might indicate a slight shift in the Court's thinking from Shaughnessy or evidence the
Court's own confusion on the issue of immigrant constitutional rights. 459 U.S. 21
(1982). In Zadvydas v. Davis, the Supreme Court held that the indefinite detention of
deportable aliens would bring up constitutional issues. 533 U.S. 678 (2001).
151. Authorization for the Use of Military Force § 2, Pub. L. No. 107-40, 115
Stat. 224 (2001).
152. David L. Franklin, Enemy Combatants and the JurisdictionalFact Doctrine, 29
CADozo L. REv. 1001, 1005 (2008).
153. 542 U.S. 507, 533 (2004).
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tive ....
It is not at all clear why that should make a determinative
constitutional difference."' 154 The same day, the Court also held in Rasul
v. Bush that district courts had jurisdiction under the federal habeas statute 155 to hear habeas applications by detainees challenging the legality of
their detentions. 156 Footnote 15 of the Court's opinion has given many
legal scholars fodder for the argument that the Court was implying that
aliens possess constitutional rights. 15 7 The Court stated:
[Being] held in Executive detention for more than two years in
territory subject to the long-term, exclusive jurisdiction and control of the United States, without access to counsel and without
being charged with any wrongdoing unquestionably describe[s]
"custody in violation of the Constitution or laws or treaties of the
United States,"
which, as Slocum noted, "is all that the habeas statute requires.
' 158
The definition of "enemy combatant" has evolved with simultaneously evolving national security needs. In response to these decisions
granting broader constitutional rights to individuals whom the government has determined to be threats to the state, the Department of
Defense established a system of Combatant Status Review Tribunals
(CSRT) to determine whether detainees should be classified as enemy
combatants. The order establishing these tribunals adopted a broader
definition of "enemy combatant" than the court had conceived of in
Hamdi, defining it as "an individual who was part of or supporting
Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners," including "any
person who has committed a belligerent act or has directly supported
159
hostilities in aid of enemy armed forces."
In 2006, the Supreme Court held that the Detainee Treatment
which was meant to strip federal courts of jurisdiction over
habeas corpus petitions, did not eliminate federal court jurisdiction over
pending habeas claims by Guantanamo detainees. 16 1 Congress
responded again by enacting the Military Commissions Act, which proAct, 160
154. Id. at 524 (internal citations omitted).
155. 28 U.S.C. § 2241.
156. Rasul v. Bush, 542 U.S. 466, 480-82 (2004).
157. Slocum, supra note 18, at 1030.
158. 542 U.S. at 483 n.15 (quoting 28 U.S.C. § 2241(c)(3)), quoted in Slocum,
supra note 18, at 1030.
159. Memorandum from Paul Wolfowitz, Deputy Sec'y of Def., to the Sec'y of
the Navy (July 7, 2004) at 1, available at http://www.defenselink.mil/news/Jul2004/
c20040707review.pdf.
160. Detainee Treatment Act of 2005, Pub. L. No. 109-148, div. A, tit. X, 119
Stat. 2680, 2739-44.
161. Hamdan v. Rumsfeld, 548 U.S. 557 (2006).
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vides the first congressional
combatant":
definition
of an "unlawful
enemy
A person who has engaged in hostilities or who has purposefully
and materially supported hostilities against the United States or its
co-belligerents who is not a lawful enemy combatant (including a
person who is part of the Taliban, al-Qaida, or associated forces);
or a person who, before, on, or after the date of the enactment of
the Military Commissions Act of 2006, has been determined to be
an unlawful enemy combatant by a Combatant Status Review Trithe authorbunal or another competent tribunal established under
62
ity of the President or the Secretary of Defense.'
If the Court is willing to endow "enemy combatants" with constitutional rights, who by definition are a threat to the nation, the argument
might readily extend that immigrants who reach the border may be able
to bring constitutional claims of equal protection. Attempting to find
refuge in both the borders of the United States and in the actual text of
the Equal Protection clause, potential plaintiffs might find haven in the
term "person" in both the Due Process and Equal Protection clauses,
which stands in stark contrast to the use of the term "citizen" in the
preceding Privileges or Immunities clause. The Court in Plyler v. Doe
recognized that, "[w]hatever his status under the immigration laws, an
alien is surely a 'person.'" 1'63 Some legally operative definitions of "person" go beyond the scope of establishing rights and obligations for individual human beings. For example, in many jurisdictions, any artificial
legal entity (like a school, business, or non-profit organization) is treated
as a juristic person.
The United States Constitution has historically utilized different
definitions of "person" when allotting seats in the House of Representatives. The Wet Foot/Dry Foot policy may be particularly susceptible to
equal protection challenge because Haitians who arrive in Florida and
touch U.S. land are sent to Guantanamo Bay pending an asylum hearing.
Haitians sent to Guantanamo Bay are therefore detainees. Additionally,
they are distinguishable from the prototypical illegal immigrant because
they have touched U.S. land but were taken away by the U.S. government. The obstacle of rational basis review might nullify this entire discussion, however, because the United States does have a legitimate
government purpose in offering political asylum to refugees of a communist regime.
162.
Military Commissions Act of 2006 § 948a(1)(i)-(ii), Pub. L. No. 109-366,
120 Stat. 2600.
163. 457 U.S. 202, 210 (1982).
256
IV.
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ALTERNATIVES TO HAITIANS THEMSELVES BRINGING CLAIMS
If the Boumediene decision will not offer constitutional haven, Haitian immigrants and their advocates might explore other avenues.
A.
Family Members as Plaintiffi
If an equal protection claim by a Haitian immigrant herself is not
viable, Haitians already within the United States may meet the requirements to bring suit. Assuming these individuals are citizens, they certainly possess the requisite constitutional right to equal protection of the
laws, with the complication that the injury is the denial of entry to other
individuals, not themselves. In order to determine whether a person may
bring a cause of action, the person must first establish standing. The
"standing doctrine" encompasses two elements: "the minimum constitutional requirements of Article III and the prudential considerations of
judicial self-government.""' 4 To satisfy the Article III requirements, the
plaintiff must establish the following factors: "(1) that he has suffered an
actual or threatened injury, (2) that the injury is fairly traceable to the
challenged conduct of the defendant, and (3) that the injury is likely to
be redressed by a favorable ruling."16 5
Applying the three requirements of Article III, they first must allege
an actual injury. Family members of repatriated Haitian refugees who
made it to shore and were then deported may be able to assert the injury
of the loss of companionship and family. The Court has intervened to
keep families together when it invalidated a zoning ordinance that made
it impossible for a grandmother and two of her grandchildren to live
together in the city on substantive due process grounds. 6' 6 In Kleindienst
v.Mandel, although the Supreme Court heralded the right of the Attorney General to refuse entry to the United States under Section 212 of the
Immigration and Nationality Act, the trial court and dissent attempted
to distinguish the case from past First Amendment immigration cases
16 7
that did not implicate the rights of current American citizens.
Despite contentions that a "palpable" or "concrete" injury is necessary, the Supreme Court has stretched its own rulings to find factual
injury where the plaintiff has not been injured in any traditional sense. 168
In Regents of the University of California v. Bakke, the plaintiff challenged
164.
1995).
165.
Cuban Am. Bar Ass'n, Inc. v. Christopher, 43 F.3d 1412, 1423 (11 th Cir.
Harris v. Evans, 20 F.3d 1118, 1121 (11th Cir. 1994) (citing Warth v. Sel-
din, 422 U.S. 490, 498-99 (1975)).
166. Moore v. City of East Cleveland, 431 U.S. 494 (1977).
167. 408 U.S. 753 (1972), revg Mandel v. Mitchell, 325 F. Supp. 620 (E.D.N.Y.
1971).
168. F. Andrew Hessick, Standing, Injury in Fact, and PrivateRights, 93 CORNELL
L. REv. 275, 304 (2008).
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the school's use of affirmative action in admissions to the medical school
as violative of his equal protection rights.16 9 The Court found standing
even though he never established that he would have been admitted had
race not been a factor, holding that "the University's decision not to
permit Bakke to compete for all 100 places in the class, simply because of
his race," was sufficient to satisfy the Article III requirement.170 The
Court similarly held that non-minority contractors had standing to challenge government programs that allotted contracts for, or otherwise
showed preference to, minority businesses. 71 The Court applied strict
scrutiny and remanded.1 72 If the Court is willing to recognize a denied
opportunity in government contract work, then the denial of the opportunity to become a citizen of the United States and enjoy the privileges or
immunities as such should qualify as an injury-in-fact.
The United States government operates with the foundation that
people are sovereign, not the government, and the Constitution embodies limits the people have placed on the government. 173 Meanwhile, the
Supreme Court has held that the nation's existence as a sovereign state
gives the government "plenary power" over immigration, which consequently gives immigrants fewer constitutional rights when immigration
powers are involved.1 7 1 Some commentators have responded by saying
that the argument of a right rooted in national sovereignty assumes complete national solidarity and overlooks the rights of individual citizens. It
further adheres to the "guest theory" of immigration, which renders government admission of an immigrant more like a retractable privilege,
akin to a private landowner's invitation, instead of characterizing the
exclusion of the alien as an interference with the personal liberty of the
alien or the relatives, friends, or business associates whom the alien has
really come to visit. It pits a government's power to exclude or expel
against a host's freedom of association. Undoubtedly, sovereignty
encompasses the right to exclude entry to prevent harm or protect
national security, but the Constitution does not appear to protect an
absolute right to select and exclude for reasons less pressing than that.
B.
InternationalLaw
The argument of a right to absolute control of the entry of immigrants rooted in national sovereignty is tempered by the United States'
169. 438 U.S. 265 (1978).
170. Id. at 281 n.14.
171.
Adarand Constructors, Inc. v. Pefia, 515 U.S. 200 (1995).
172.
Id. at 211 (quoting Ne. Fla. Chapter of Associated Gen. Contractors of Am.
v. Jacksonville, 508 U.S. 656 (1993)).
173.
NEUMAN,
supra note 126, at 121.
174. See Fong Yue Ting v. United States, 149 U.S. 698, 711 (1893) (characterizing the deportation power as "an inherent and inalienable right of every sovereign and
independent nation").
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participation in international law and treaties. Post-World War II, international human rights norms may impose limits on a nation's ability to
expel or exclude immigrants
and exert absolute control over the move17 5
ment of persons.
There are two sources of international law: treaty and customary
international law. 176 The Supremacy Clause of the United States Constitution provides that "all Treaties made, or which shall be made, under the
authority of the United States, shall be the supreme Law of the land; and
the Judges in every State shall be bound thereby, any Thing in the Con77
Cusstitution or Laws of any State to the Contrary notwithstanding."'
tomary international law, however, is not mentioned in the Constitution.
But in The Paquete Habana, the Supreme Court ruled that it is "part of
our law," and "ascertained and administered by the courts of justice of
appropriate jurisdiction as often as questions of right depending upon it
178
are duly presented."
The Universal Declaration of Human Rights was adopted by the
United Nations on December 10, 1948. Article 1 of the Declaration
reads: "All human beings are born free and equal in dignity and rights.
They are endowed with reason and conscience and should act towards
one another in a spirit of brotherhood."' 179 The United States has only
ratified three of the international human rights treaties to which it is a
signatory.' 8 ° Two of these utilize language that may provide refuge for
Haitian immigrants.
The preamble to the Convention on the Elimination of All Forms
of Racial Discrimination (CERD) includes the following two provisions:
Considering that the Universal Declaration of Human Rights proclaims that all human beings are born free and equal in dignity
and rights and that everyone is entitled to all the rights and free175. NEUMAN,supra note 126, at 121.
176. 3 Immigr. Law Serv. 2d § 16:3 (2008).
177. U.S. CONST. art. VI, cl.2.
178. 175 U.S. 677, 700 (1900). The principal sources of customary international
law are:
(1) the customs and practices that nations actually observe, to the extent that
these practices flow from a sense of international legal obligation;
(2) general principles widely recognized as law by civilized nations, even if these
principles are not always observed in practice;
(3) decisions of national and international courts addressing international legal
issues; and
(4) the writings of scholars and other highly qualified publicists.
3 Immigr. Law Serv. 2d § 16:3 (2008).
179. Universal Declaration of Human Rights art. 1, G.A. Res. 217A (III), U.N.
Doc A/810 (Dec. 10, 1948), available at http://www.un.org/Overview/ rights.html.
180. 3 Immigr. Law Serv. 2d § 16:3. These are the International Covenant on
Civil and Political Rights (CCPR), the Convention on the Elimination of All Forms of
Racial Discrimination (CERD), and the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (CAT). Id.
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doms set out therein, without distinction of any kind, in particular as to race, colour or national origin.
Considering that all human beings are equal before the law and
are entitled to equal protection of the law against any discrimination and against any incitement to discrimination.18 1
The United States also ratified the International Covenant on Civil
and Political Rights (CCPR), whose preamble includes a similar recognition of persons and the "equal and inalienable rights of all members of
the human family" as the "foundation of freedom, justice, and peace in
the world."1'82 It also adopts a similar equal protection clause which
makes specific mention of national origins protection:
All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect,
the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any
ground such as race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or other
83
status.1
However, the United States ratified the treaty with so many reservations it has rendered it ultimately ineffective. In particular, the United
States wanted to prevent plaintiffs from raising a private cause of action
under the treaty, so the Senate issued a declaration that "the provisions of
Articles 1 through 27 of the Covenant are not self-executing."184
The juxtaposition of international law with U.S. law is increasingly
common in situations of detention. The limbo-like status of detainees
has created an opportunity for international law to influence modern
interpretations of not only the Due Process but also the Equal Protection
clauses of the Fifth and Fourteenth Amendments. In Fernandez v. Wilkinson, Judge Rogers asserted, "No country in the world has been more
vocal in favor of human rights [than the United States]. It would not
befit our history as a guarantor of human rights for our own citizens[ ] to
decline to protect unadmitted aliens against arbitrary governmental
infringement of their fundamental human rights."' 8 5 Despite this admonition, international law does not always find a welcome reception in
American courts, as is evidenced by the numerous reservations the
United States adopts when signing on to treaties.
181. International Convention on the Elimination of All Forms of Racial Discrimination pmbl., G.A. Res. 2106 (XX), U.N. Doc A/6014 (Dec. 21, 1965), availableat
http://www2.ohchr.org/english/law/cerd.htm.
182. Opened for signature Dec. 19, 1966, 999 U.N.T.S. 171.
183. Id. art. 26.
184. 138 Cong. Rec. S4784 (1992).
185. 505 F. Supp. 787, 799 (D. Kan. 1980).
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Yet some lower courts are experimenting with applying international law. In Fernandez-Roque v. Smith, the Northern District of Georgia recognized that "[e]ven the government admits that customary
international law of human rights contains at least a general principle
prohibiting prolonged arbitrary detention," but this was tempered by the
President's "authority to ignore our country's obligations arising under
customary international law."' i 6 Although international law was not
ultimately controlling, Fernandez-Roquemarks a partly successful attempt
to use standards of international law to "throw light on the need for more
modern interpretation of the due process and equal protection clauses of
the Fifth and Fourteenth Amendments to the Constitution."187 Still, an
attempt to use the conceptions of person and equal protection adopted in
these covenants may meet similar resistance as it did here.
CONCLUSION
The seventy-three snow-covered spectators chose the perfect day to
sit in on Supreme Court arguments. Although the decision centered on
Guantanamo Bay, its wake will be felt miles away. Even though the case
before it "lack[ed] any precise historical parallel," the Court's decision
evinces a willingness to stretch constitutional rights beyond their traditional ambit because the "lack of precedent on point is no barrier to [the]
holding."18' 8 By opening up the categories of status, the Court may
simultaneously open ports of entry, border crossings, and beaches of the
United States.
This is a moment of opportunity. The United States should shape
its own immigration policy rather than leave itself susceptible to the
onslaught of challenging litigation and the potential for immigration policy to be shaped by the Court. Rather than change with the changing
political tides in Congress at the time, Congress should adopt a more
national origins-neutral immigration policy that views the United States
as a united country that both protects its borders and recognizes immigrants as human beings and citizens of a wider world community, rather
than just the country from which their lifeboat pushed off.
186. 622 F. Supp. 887, 902-03 (N.D. Ga. 1985).
187. Louis B. Sohn, Can InternationalLaw ProvideExtra-ConstitutionalProtection
for Excludable Aliens, 21 GA. J. INT'L & COMP. L. 329, 343 (1991).
188. Boumediene, 128 S.Ct. at 2262.